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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

29 MAY 2013

R (on the application of Patel) v General Medical Council [2013] EWCA Civ 327; (2013) PLLR 068

Professional regulation - healthcare - General Medical Council - education - overseas qualifications - Medical Act 1983 - distance-learning - irrationality - legitimate expectation - public interest - Article 2 Protocol 1 European Convention on Human Rights

Where correspondence between the General Medical Council and a future student had given rise to a legitimate expectation that a particular policy would be applied in their case, it was not open to the General Medical Council to change that policy without putting in place transitional measures. There was no significant public interest capable of outweighing the legitimate expectation.

27 March 2013

Court of Appeal

Lord Dyson MR, Lloyd and Lloyd Jones LJJ

(1)        The Appellant (P) had in 2004 engaged in detailed correspondence with the Defendant (GMC) regarding whether a distance-learning medical degree offered by an educational institution based in St Kitts would satisfy the GMC's requirements as an ‘acceptable overseas qualification'. He subsequently undertook this degree, relying on assurances he received. In the meantime, the GMC changed its policy twice, without instituting any transitional measures. Upon completing his studies in 2011, P was informed that his qualification would not be accepted, the policy on overseas qualifications having been amended in both 2006 and 2010.

(2)        P challenged this decision on the basis that it was irrational, that the GMC had unlawfully fettered its discretion in failing to allow any exceptions to the policy, and that the decision was a disproportionate interference with his rights under Article 2 Protocol 1 European Convention on Human Rights. Furthermore, it was argued that the correspondence had given rise to a legitimate expectation upon which he was entitled to rely.

(3)        Lloyd Jones LJ, with whom Lord Dyson MR and Lloyd LJ agreed, held: That sections 21B(1) and 21C(2) of the Medical Act 198 did not give the GMC any discretion to accept a qualification which did not meet the criteria it set for an ‘acceptable overseas qualification.' This was in line with the intention of Parliament (R v Specialist Training Authority Medical Royal Colleges, unreported 5 November 1998 considered) [31] - [33].

(4)        That the change of policy on acceptable overseas qualifications, which had retrospective effect, was not irrational: there were no universally recognised standards in this area, and Parliament had intended that the GMC lay down standards. The policy change resulted from a broad concern about degrees awarded by overseas institutions and the connection between these institutions and their students [36].

(5)        That Article 2 of Protocol 1 of the European Convention on Human Rights was not engaged and therefore no assessment of proportionality was required (Belgian Linguists (No2) (1968) EHRR 252; R (Sivills) v General Social Care Council [2007] EWHC 2576 and R v Home Secretary, ex p Brind considered) [38].

(6)        That P had received a clear, unequivocal and unqualified assurance from the GMC that if he completed the course in reasonable time his qualification would be recognised. His correspondence with the GMC was so particular that it was unlikely others would be able to rely on it in the same manner (R (Bhatt Murphy (A Firm)) v The Independent Assessor [2008] EWCA Civ 755 considered). The statutory scheme in relation to accepted overseas qualifications did not preclude the operate of legitimate expectations. The statutory duty contained within the Medical Act 1983 had to exercise in accordance with principles of substantive fairness [43] - [55].

(7)        That it was necessary to consider whether there was sufficient public interest in changing the rules on recognising overseas qualifications without putting in place transitional measures such as those which would have assisted P, such as might justify his legitimate expectation being overridden. This was a matter of balancing any public interest against an objective assessment of fairness to P. In considering this question the court would recognise that the intensity of review would differ depending on the decision challenged. The court had to give weight to the professional expertise of the GMC, and that statute placed it under a duty to take decisions as to the recognition of overseas qualifications in order to safeguard the public. However, when the policy changed in 2006 and 2010 no consideration had been given to the possibility of transitional measures. This alone was sufficient to justify quashing the decision to apply the current rules to P. The GMC should have considered the impact on P and others in similar positions of its decision to change the policy with immediate effect (R (Bibi) v Newham Borough Council [2002] 1 WLR 237 considered). The lack of consideration justified a greater intensity of review when considering whether it would be fair to allow P's legitimate expectation to be overridden. That it would not be fair was further supported by the fact that P's legitimate expectation was based on an express statement made to him personally in response to a particular enquiry about his personal circumstances, by someone held out as competent to give such advice, that P's expectation was clearly of great importance; that, although deterimental reliance was not a pre-requisite for establishing a legitimate expectation, it could influence the weight to be given to the legitimate expectation when balanced against the interest in overriding it; and that the GMC's decision was not a macro-political one and was likely to affect only a small number of people. In short, the GMC had acted unlawfully in altering its policy without adopting transitional measures. It was not possible to identify a sufficient public interest which would outweigh the unfairness to P of breaching his legitimate expectation. It was not for the court to suggest what provisional measures ought to have been put in place, but it was clear that the GMC would have been able to do so [59] - [62], [81] - [86].

(8)        That P was not to be prevented from relying on the statements made to him by virtue of the time taken to complete his qualification. In the circumstances the time period was a reasonable one, particularly given his need to work part-time to fund his studies and that his wife had been ill during this period [88].

(9)        That granting relief would not prejudice good administration, particularly given the small number of individuals likely to be in positions similar to that of P [91].

Appeal allowed; GMC instructed to recognise the qualification of P for the purposes of the Medical Act 1983

Key Paragraphs

[1] - Introduction

[2] - [12] - The regulatory framework.

[13] - [28] - The appellant.

[29] - The appeal.

[30] - [34] - Unlawful fettering of discretion.

[35] - [37] - Irrationality.

[38] - Proportionality.

[39] - [49] - Legitimate expectation: a clear, unambiguous and unqualified statement.

[50] - [55] - Legitimate expectation: a pressing and focussed representation.

[56] - [86] - Legitimate expectation: if there is a legitimate expectation, is the GMC entitled to frustrate it?

[87] - [91] - Delay.

[92] - [93] - Conclusion.

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